Defend Divorce – should you ever do it?

Section 1 (1) of the Matrimonial Causes Act 1973 sets out that a divorce can only be presented to Court if the marriage has irretrievably broken down. This breakdown is evidenced by one of five factors, which include adultery, separation for in excess of five years and unreasonable behaviour. Although the party receiving the divorce petition (known as the Respondent) may dispute the content of the petition, simply receiving it is often a clear indication that the marriage is beyond saving. If a party elects to defend divorce proceedings, it is likely to see an increase in the complexity and cost of those proceedings, which is generally enough of an incentive for most Respondents to acquiesce to the application for a divorce.

However, there are circumstances wherein a Respondent feels that they have no alternative but to defending divorce proceedings. This is often as a result of the content of the petition potentially having a future bearing on associated proceedings, e.g. those relating to children or the family finances. The Respondent may have no alternative but to defend divorce proceedings if there are adverse jurisdictional factors, such as the divorce being heard in the England Wales Court’s leading to adverse financial proceedings that may follow, or consenting to the content of the petition may adversely impact on contact or residency of the children to the family. One useful approach to address these issues, if a Petitioner does not agree to amendments, is for the Respondent to cross-petition proceedings. Such steps will lead to a hearing, allowing for judicial guidance on a resolution for the dispute.

It is generally considered inappropriate to defend divorce proceedings based on the Petitioner’s request for costs or in circumstances when the Respondent would prefer proceedings were brought under a different fact, e.g. unreasonable behaviour being preferred to adultery. Disputes over divorce costs or which of the five facts for divorce are relied upon are best resolved in correspondence between the parties. The Family Procedure Rules 2010 and the Resolution Code and Guide to Good Practice can provide useful guidance on how to deal with cases like this.

If a Petitioner refuses to amend the particulars of the petition, it would be appropriate for the Respondent to record the disputed particulars in correspondence, to ensure this can be referred to in future related proceedings.

If the Respondent wishes to oppose allegations of behaviour, the Court will consider the facts on the balance of probabilities, as considered in the case of Butterworth v Butterworth [1997], heard in the Court of Appeal. Adopting this approach still carries the risks and potentially adverse cost implications of defending the proceedings.

Defending divorce proceedings is an infrequently used approach to divorce, but there are circumstances when it should be undertaken to protect a Respondent’s position. Contact Hunter and Uro solicitors today to discuss your divorce and to see how our specialist, bespoke advice can help you. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters.